News and Comment on Social care issues in the UK.
Random Acts of Reality is written by a London Ambulance worker. He has written about his experience of visiting a care home to pick up an elderly lady. It makes sobering reading and illustrates just how far some care settings have to go to achieve reasonable standards.
Labels: elderly care
The Scottish Commission for the Regulation of Care (The Care Commission ) will in future operate under a new framework of Scottish Regulations for the minimum frequency of Inspection.
The Care Commission previously operated under a minimum frequency of Inspection of 12 months for all registered care services. The new minimum inspection frequency regulations change the minimum frequency for certain types of regulated services;
Labels: Care Commission
The Mental Welfare Commission for Scotland produces a number of helpful guidance documents;
The current list -
Nutrition by artificial means- a guide for mental health practitioners - new legal and ethical guidance for practitioners considering the use of artificial nutrition for mental disorder.
Consent to treatment - new guidance to help mental health practitioners interpret the legal basis for treatment and to give treatment that is in line with best legal and ethical practice.[2006]
Covert medication - a legal and practical guide - new This guidance responds to cases and research evidence that identifies this is an issue for those using and providing mental health and learning disability services in Scotland. The guidance suggests that there may be situations in which this might be necessary to keep an individual from harm. A Covert medication care pathway and review is provided to support decision making, that is structured and recorded in a way that safeguards that the health, safety and legal rights of the individual. [2006]
Guide to interpreting - new a toolkit for people who need to use interpreters in mental health and learning disability settings. Includes checklists for service providers, service users and interpreters. [2006]
Carers and confidentiality - new good practice guidance on how to balance the principle of carer involvement with the patient's right to confidentiality. [2006]
Rights, risks and limits to freedom (new edition) - guidance updated to take into account the principles of the new mental health act. Includes an appendix of legal considerations by Hilary Patrick. [2006]
Guide to welfare and financial guardianship in care homes - a summary guide for residential care workers with checklist that can be attached to resident's files. [2006]
Safe to Wander - Principles and guidance on good practice in caring for residents with dementia and related disorders where consideration is being given to the use of wandering technologies in care homes and hospitals. [2005]
Information for general hospitals - guidance on treatment of patients with a mental illness, learning disability or other mental disorder in general hospital settings. [2006]
Guidance on the admission of young people to adult mental health wards - guidance on the provision of care and treatment to under 18 year olds when admitted to adult wards. [2005]
When to invoke the Adults with Incapacity Act - updated guidance reflecting recent case law. [2005]
Authorising significant interventions for adults who lack capacity - guidance on the use of the Adults with Incapacity Act by Hilary Patrick. [2004]
Care of older people with mental health problems - a position statement on mixing dementia patients and patients with longer term mental disorder in a single ward. [2004]
The Commission for Social Care Inspection (CSCI) has predicted that the handover of the inspection of children's services to education regulator Ofsted would not see immediate changes to the inspection approach.
CSCI's made the handover to Ofsted officially on April 1 at which point responsibility for regulation and inspection of most children's social care services in England moved from the Commission for Social Care Inspection (CSCI) to Ofsted.
The office of the children's rights director, Roger Morgan, based within CSCI, also joins the new Ofsted.
A CSCI statemnt said: "The inspection and regulation of children's services does not change significantly in the short term, with many CSCI staff transferring to Ofsted and continuing the focus on the experience of children who use services."
CSCI retains all functions for adult social care including services for younger adults and older people. It will also continue to regulate a small number of services that serve both adults and children - some home care services, nurses agencies, care homes and specialist further education colleges registered as care homes. CSCI will also continue to have an interest in the transition from children's to adults' services.
Ofsted also has a new title as the Office for Standards in Education, Children's Services and Skills.
Christine Gilbert, chief inspector of education, children's services and skills, , said: "The reach of the new inspectorate is extensive. At least one person in three makes use of the services we shall inspect or regulate. This puts us in a position to make a difference to the lives of many millions of our fellow-citizens, of all ages. This is a privilege, and a great responsibility."
Labels: CSCI
A recent Commission for Social Care Inspection (CSCI) report raises questions about the value of "one-person children's homes". Councils can pay anything up to £6,000 a week to place children with extreme and complex needs in such homes but there appears to be no proof that approach benefits the children concerned.
In "one person children's homes" a child is often kept in a private house together with non-resident staff working in shifts. CSCI found that despite government guidance stressing the importance of children in care staying in their local area they are often located far from the child's own community.
The number of such children's homes is increasing, but it is not clear that councils have properly considered their efficacy. Children may stay in these homes for a few months or for periods of years.
CSCI notes that the homes are "extremely expensive" and questions whether the councils who are getting a good deal. Private providers are able to charge so much for the services because the provision is so scarce.
Denise Platt, CSCI chairwoman, said: "We don't know enough about how children respond to living on their own in these one place children's homes... It may well be convenient for local councils to place children with complex needs in these homes, but the impact on the children who live there is still unclear."
In some cases the impression was that the care process had not been "thought through", Dame Denise said.
Children living in some of the one-person homes told inspectors they were glad to escape bullying and enjoyed more attention from staff but they also often missed the company of other children and felt lonely.
Inspection reports revealed the homes did worse than larger children's homes in key areas, including support for individual children and the training and competency of staff.
Some councils do not use one person homes on principle and those who do tend not to do so as a first choice. Youngsters being placed usually have complex emotional or behavioural difficulties, learning disabilities and mental health problems, and may be difficult to control.
Some homes were found to be illegally limiting children's freedom - although they are not officially secure accommodation.
CSCI has also published a report on childrens services , The report found a need to improve progress in a number of areas including;
Increasing financial pressures are resulting in high eligibility criteria and thresholds for access to local council services. Children and families are, as a result, not always getting the help they need.
There is not enough support for children when they are taken into care and placed in a children’s home or with foster parents.
There are shortfalls in services to vulnerable children and young people with mental health problems, and in particular for children in care and their families.
Children in care do less well in education. While there have been improvements, more needs to be done, and done quickly.
Services to children with disabilities vary considerably depending on where they live. Services to children whose parents are disabled are similarly variable from one local council area to another.
There is insufficient coordination between children’s and adults’ social services teams in local councils to ensure coordinated help.
Labels: Childrens Homes, CSCI
The Scottish Executive has published a document Safer Recruitment through Better Recruitment which gives advice on safe staff recruitment practice in the social care sector.
Labels: recruitment, scotland
What is the Duty of Care?
Duty of care is the obligation to exercise a level of care towards an individual, as is reasonable in all the circumstances, to avoid injury to that individual or his property.
The Duty of care is therefore based on the relationship of the different parties, the negligent act or omission and the reasonable foreseeability of loss to that individual.
A negligent act is an unintentional but careless act which results in loss. Only a negligent act will be regarded as having breached a duty of care. Whether an Act is negligent can only be considered in context. Liability for breach of a duty of care also very much depends on what the public policy is at the time the case is heard.
In Scotland this area of the law is called Delict while in England, Wales and Northern Ireland it is called the law of Tort. Delict and tort differ from the law of contract. Contracts generally specify the duties on each of the parties and the remedy if these duties are breached. Upon entering into a contract, the parties obtain specific rights and certain duties. In delict or tort these duties exist through the nature of the parties relationship regardless of the contractual obligations.
Under both jurisdictions, delict and tort try to strike a balance between the individual's wrongful conduct and compensating the victim for his loss.
Although much of the law of delict and tort has been developed by Courts, there are also now a number of statutory rules which apply for example to employment, disability discrimination, health and safety, data protection and occupier's liability.
Many of the general principles and the law of negligence are now more or less the same under the two jurisdictions but there are a number of differences between them, for example, the law of defamation in Scotland in comparison to libel and slander in England, and the law of nuisance.
Any relevant case law or decisions of any of the UK courts are often generally relevant and applicable to other similar situations regardless of where they are situated.
The basic principles of Duty of Care
The leading Scottish case of Donoghue v Stevenson 1932 SC (HL) 31 set out principles that still form the basis for establishing a duty of care under Scots and English law.
These are:
Does a duty of care exist?
This depends on the relationship between the parties. A duty of care is not owed to everyone but only to those who have a sufficiently close relationship. There is no liability if the relationship between the parties is too remote. Closeness in this context of course implies also "professional" relationship or responsibility.
Is there a breach of that duty?
Liability only arises if the action breaches the duty of care and causes a loss or harm to the individual which would have been reasonably foreseeable in all the facts and circumstances of the case.
Did the breach cause damage or loss to an individual's person or property?
Originally, when Donoghue was decided, the duty of care was thought only to be applicable to physical injury and damage to property, however this has now extended in some cases to where there is only economic loss.
In a Social Care context a Duty of care will usually exist where the Social Care worker has some professional or work responsibility for delivering a service to an individual. A breach would arise where a negligent act or omission to act resulted in harm to that individual and the harm was foreseeable.
Recommended reading: The Health and Social Care Hanbook - explains a rangge of health and Social Care law
Important Note: This note is not a definitive guide to the law relating to duty of care in either England and Wales or Scotland. It aims to give a general description only. Anyone concerned about Duty of Care or a breach of a duty of care is advised to seek legal advice.
Labels: Duty of Care
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